Citation Nr: 21032793 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-27 139 DATE: May 28, 2021 ORDER An initial compensable disability rating for the service-connected left eye pterygium prior to June 21, 2019 is denied. A disability rating in excess of 10 percent for the service-connected left eye pterygium from June 21, 2019 to October 31, 2019 is denied. A disability rating in excess of 20 percent for the service-connected left eye pterygium from November 1, 2019 is denied. REMANDED Entitlement to service connection for Peyronie's disease is remanded. FINDINGS OF FACT 1. Prior to June 21, 2019, the Veteran's left eye corrected distance was, at worst, 20/40, with no evidence of left eye visual field defect, diplopia, disfigurement or active conjunctivitis due to left eye pterygium, or at least one incapacitating episode requiring treatment within a twelve-month period from May 13, 2018 to June 20, 2019. 2. From June 21, 2019 to October 31, 2019, the Veteran's left eye corrected distance was, at worst, 20/40, with no evidence of left eye visual field defect, diplopia, disfigurement or active conjunctivitis due to left eye pterygium, or three or more incapacitating episodes requiring treatment within a twelve-month period. 3. From November 1, 2019, the Veteran's left eye corrected distance was, at worst, 20/20, with no evidence of left eye visual field defect, diplopia, disfigurement or active conjunctivitis due to left eye pterygium, or five or more incapacitating episodes requiring treatment within a twelve-month period. CONCLUSIONS OF LAW 1. Prior to June 21, 2019, the criteria for an initial compensable disability rating for left eye pterygium are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.79, Diagnostic Code 6034 (2019). 2. From June 21, 2019 to October 31, 2019, the criteria for a disability rating in excess of 10 percent for left eye pterygium are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.79, Diagnostic Code 6034 (2019). 3. From November 1, 2019, the criteria for a disability rating in excess of 20 percent for left eye pterygium are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.79, Diagnostic Code 6034 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1976 to February 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in October 2019. In July 2019, the Veteran testified at a videoconference Board hearing before the undersigned. In an August 2020 rating decision, the RO assigned a 10 percent disability rating for left eye pterygium effective June 21, 2019 and a 20 percent disability rating for left eye pterygium from November 1, 2019. As the rating periods regarding the Veteran's left eye pterygium prior to June 21, 2019, from June 21, 2019 to October 31, 2019, and from November 1, 2019 are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2019). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial compensable disability rating for the service-connected left eye pterygium prior to June 21, 2019 2. Entitlement to a disability rating in excess of 10 percent for the service-connected left eye pterygium from June 21, 2019 to October 31, 2019 3. Entitlement to a disability rating in excess of 20 percent for the service-connected left eye pterygium from November 1, 2019 The Veteran seeks higher ratings for his service-connected left eye pterygium, which is rated as noncompensable prior to June 21, 2019, as 10 percent disabling from June 21, 2019 to October 31, 2019, and as 20 percent disabling from November 1, 2019 under Diagnostic Code 6034 (Pterygium). 38 C.F.R. § 4.79. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, Diagnostic Code 6034 instructed to evaluate pterygium based on visual impairment, disfigurement (Diagnostic Code 7800), or conjunctivitis (Diagnostic Code 6018), depending on the particular findings. 38 C.F.R. § 4.79. Under the revised criteria, Diagnostic Code 6034 instructs to evaluate pterygium under the General Rating Formula for Diseases of the Eye, disfigurement (Diagnostic Code 7800), or conjunctivitis (Diagnostic Code 6018), depending on the particular findings, and combine in accordance under 38 C.F.R. § 4.25. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Subject to the provisions of § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). Under both the former and revised criteria for Diagnostic Code 6066, visual acuity, a 10 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/50, and vision in the other eye is 20/40; when visual acuity in one eye (the poorer eye) is 20/70, and vision in other eye is 20/40; or when visual acuity in one eye (the poorer eye) is 20/100, and vision in the other eye is 20/40. 38 C.F.R. § 4.79. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or incapacitating episodes, whichever results in a higher evaluation. An incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes, such as systemic immunosuppressants or biologic agents, intravitreal or periocular injections, laser treatments, or other surgical interventions. 38 C.F.R. § 4.79 at Notes 1 and 2. Under the amended regulations, a 10 percent rating is warranted for evidence of documented incapacitating episodes requiring at least one but less than three treatments for an eye condition during the past 12 months. 38 C.F.R. § 4.79. A 20 percent rating is warranted for evidence of documented incapacitating episodes requiring at least three but less than five treatments for an eye condition during the past 12 months. Id. A 40 percent rating is warranted for evidence of at least five but less than seven treatment visits for an eye condition during the past 12 months. Id. Rating period prior to June 21, 2019 Turning first to the period on appeal prior to June 21, 2019, based on a review of the relevant evidence, the Board finds that an initial compensable disability rating for left eye pterygium is not warranted. As the amended regulations went into effect during the rating period on appeal, both the former and revised criteria under Diagnostic Code 6034 are for consideration. Here, the medical evidence of record, to include the March 2012 VA examination and post-service VA and private treatment records, reflects corrected distance measuring no more than 20/40 in the Veteran's left eye. As the Veteran's left eye, but not the right, is service connected, the visual acuity of his non-service-connected right eye is considered to be 20/40 for purposes of evaluating right eye visual impairment. 38 C.F.R. § 4.75(c). Thus, when combining service-connected left eye visual acuity of 20/40 with non-service-connected right eye visual acuity of 20/40, pursuant to 38 C.F.R. § 4.75(c), this equates to a noncompensable rating based on visual acuity. While Diagnostic Code 6034 also instructs to evaluate based on evidence of disfigurement or conjunctivitis, the March 2012 VA examination, as well as post-service VA and private treatment records, are silent for evidence of either disfigurement or active conjunctivitis in relation to the Veteran's left eye pterygium. Therefore, a higher rating under Diagnostic Code 7800 (disfigurement) or 6018 (conjunctivitis) is not warranted. Further, under the revised criteria for Diagnostic Code 6034, there is no evidence of at least one documented incapacitating episode requiring treatment for the Veteran's left eye pterygium from May 13, 2018 to June 20, 2019. Although the record contains evidence of in-office left eye lash removal in June 2016 and November 2017 to treat the Veteran's left eye pterygium, these instances predate the May 13, 2018 revised rating criteria which allows for consideration of incapacitating episodes under Diagnostic Code 6034. While the criteria for incapacitating episodes in relation to left eye pterygium may be applied to the rating period on appeal from May 13, 2018 to June 20, 2019, here, the record for that period is silent for evidence of at least one incapacitating episode requiring a treatment visit with systemic immunosuppressants or biologic agents, intravitreal or periocular injections, laser treatments, or other surgical interventions for the Veteran's left eye pterygium, and therefore, a higher rating under the criteria for incapacitating episodes is not warranted. As the record is silent for evidence of visual acuity of at least 20/50 in the Veteran's left eye, visual field defect, impairment of muscle function, or disfigurement or active conjunctivitis due to left eye pterygium during the period on appeal, nor is there evidence of any incapacitating episodes requiring treatment from May 13, 2018 to June 20, 2019, the currently assigned initial noncompensable disability rating for the Veteran's left eye pterygium prior to June 21, 2019 under Diagnostic Code 6034 is appropriate and a higher rating is not warranted. Rating period from June 21, 2019 to October 31, 2019 For the period on appeal prior from June 21, 2019 to October 31, 2019, based on a review of the relevant evidence, the Board finds that a disability rating in excess of 10 percent for left eye pterygium is not warranted. As the amended regulations went into effect prior to the rating period on appeal, the revised criteria under Diagnostic Code 6034 are for consideration. Here, the medical evidence of record, to include post-service VA and private treatment records, reflects corrected distance measuring no more than 20/40 in the left eye. Thus, when combining service-connected left eye visual acuity of 20/40 with non-service-connected right eye visual acuity of 20/40, pursuant to 38 C.F.R. § 4.75(c), this equates to a noncompensable rating based on visual acuity. Under the revised criteria, Diagnostic Code 6034 also instructs to evaluate based on evidence of disfigurement, conjunctivitis, or incapacitating episodes. While the record for the period on appeal is silent for evidence of disfigurement or active conjunctivitis due to left eye pterygium, the Veteran's private treatment records reflect two documented incapacitating episodes within a twelve-month period which required visits to receive treatment for the Veteran's left eye pterygium. Specifically, on June 21, 2019, the Veteran was prescribed artificial tears to treat his left eye pterygium, and on October 7, 2019, the optometrist removed a lash from the Veteran's left eye caused by his pterygium. This evidence of treatment visits for two incapacitating episodes within a twelve-month period warrants a 10 percent disability rating for the period on appeal between June 21, 2019 to October 31, 2019, which is the Veteran's currently assigned rating. Therefore, as the record is silent for evidence of visual acuity of at least 20/200 in the Veteran's left eye, visual field defect, impairment of muscle function, disfigurement or active conjunctivitis due to left eye pterygium, or at least three incapacitating episodes requiring treatment visits within a twelve-month period during the period on appeal, the currently assigned 10 percent disability rating for the Veteran's left eye pterygium from June 21, 2019 to October 31, 2019 under Diagnostic Code 6034 is appropriate and a higher rating is not warranted. Rating period from November 1, 2019 For the period on appeal prior from November 1, 2019, based on a review of the relevant evidence, the Board finds that a disability rating in excess of 20 percent for left eye pterygium is not warranted. As the amended regulations went into effect prior to the rating period on appeal, the revised criteria under Diagnostic Code 6034 are for consideration. Here, the medical evidence of record, to include the February 2020 VA examination and post-service VA and private treatment records, reflects corrected distance measuring no more than 20/20 in the left eye. Thus, when combining service-connected left eye visual acuity of 20/20 with non-service-connected right eye visual acuity of 20/40, pursuant to 38 C.F.R. § 4.75(c), this equates to a noncompensable rating based on visual acuity. Under the revised criteria, Diagnostic Code 6034 also instructs to evaluate based on evidence of disfigurement, conjunctivitis, or incapacitating episodes. The record for the period on appeal is silent for evidence of disfigurement due to the Veteran's left eye pterygium. While the 2020 VA examiner was asked to opine as to the Veteran's reported symptoms of active conjunctivitis, upon examination, she found no evidence of active conjunctivitis, and opined that even if conjunctivitis were present, it is more likely due to viral or bacterial infections and not the Veteran's service-connected pterygium. The 2020 examiner also diagnosed the Veteran with bilateral cataracts, but she opined that the Veteran's cataracts are due to ageing and are unrelated to his service-connected left eye pterygium. Additionally, the 2020 examiner diagnosed the Veteran with pinguecula of the right eye and opined that it is more likely than not that this disorder is due to long-term exposure to ultraviolet light rather than the Veteran's left eye pterygium. Further, the record for the period on appeal is silent for evidence of any incapacitating episodes requiring treatment within a twelve-month period. While the medical evidence of record for the period on appeal suggests possible improvement in the Veteran's left eye pterygium, the 20 percent disability rating currently assigned is a favorable finding that will not be disturbed. Therefore, as the record is silent for evidence of visual acuity of at least 10/200 in the Veteran's left eye, visual field defect, impairment of muscle function, disfigurement caused by left eye pterygium, or at least five incapacitating episodes requiring treatment within a twelve-month period, the criteria for the assignment of a disability rating in excess of the currently assigned 20 percent for the Veteran's left eye pterygium from November 1, 2019 under Diagnostic Code 6034 is not warranted. In sum, as the preponderance of the evidence is against the Veteran's claims for a compensable initial rating for left eye pterygium prior to June 21, 2019; a rating in excess of 10 percent for left eye pterygium from June 21, 2019 to October 31, 2019; and a rating in excess of 20 percent for left eye pterygium from November 1, 2019, the claims must be denied. In denying such ratings, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for Peyronie's disease is remanded. The Veteran underwent a VA examination for his claimed Peyronie's disease in February 2020. The examiner confirmed a diagnosis of Peyronie's disease. While acknowledging the Veteran's lay statements that he experienced penile trauma during active service when he dove off a diving board in 1977, the examiner provided a negative nexus opinion as to direct service connection, stating that the underlying cause of Peyronie's disease is unknown, but likely multifactorial with interplay between genetic predisposition, trauma, and tissue ischemia. The February 2020 VA examination opinion is inadequate, as the examiner did not provide an adequate opinion with supporting rationale as to the nature and etiology of the Veteran's 2006 diagnosed Peyronie's disease. While the examiner notes multifactorial risk factors for the development of Peyronie's disease, she did not discuss whether the Veteran had any of these risk factors. As the February 2020 VA opinion is conclusory in nature and lacks adequate rationale, the matter is remanded to obtain an addendum VA medical opinion. The matter is REMANDED for the following action: 1. Send the Veteran's claims file to an appropriate medical professional to obtain an addendum VA opinion regarding the nature and etiology of the Veteran's Peyronie's disease. The Veteran's electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: Is it at least as likely as not that the Veteran's Peyronie's disease had its onset in service or is otherwise directly related to service? When rendering the requested opinion, the medical opinion provider is asked to clarify whether the Veteran has any of the multifactorial risk factors that were identified by the February 2020 VA examiner as causes of Peyronie's disease, specifically, genetic predisposition, trauma, or tissue ischemia. If the requested opinion cannot be provided without a new examination, one should be scheduled. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. (Continued on the next page) 2. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.